AI Structured Summary
Not yet generated for this judgment
Judgment
This Interim Application Dy. No. 448/2026 in Misc. Appeal Dy. No. 447/2026 is filed against the order dated 30.01.2026 passed by DRT-II Mumbai in I.A. No. 274/2026 in Securitization Application No. 39/2026. Vide this order, the Learned DRT dismissed the application of the Appellant Society to stay the operation, implementation and execution of the possession notice dated 12.01.2026 including the proposed action for taking physical possession on 30.01.2026 at 11:00 am or thereafter of the subject properties i.e. Office Nos. 201, 202 and 203 on the 2nd Floor, in wing “D”, (admeasuring 3135 sq. ft. in toto), carpet area (which is inclusive of the area of Balconies), Atharva Landmark, Poddar Rd. Primal Nagar, Malad (East), Mumbai-400 097.
The Learned Counsel for the Appellant would submit that the impugned order is not sustainable and incorrect as learned DRT-II Mumbai (hereinafter referred as “DRT”) has not considered material facts and law.
The Learned Counsel for the Appellant would submit that the second floor of the building namely Atharva Landmark is, in fact, the parking slots which were sold by the Respondent No.2 the Realtor/ Developer, to the respective apartment owners of this housing society forming part of the Conveyance Deed.
He would further submit that total there are around 45 apartments in this building and the second floor was converted into parking space and a dedicated ramp is constructed to drive up vehicle upon second floor to park cars. He would further submit that it was specifically stated in respective Conveyance Deed of respective apartment owners of this building that specified place of this second floor podium is shown as a parking space. He referred to one of the Conveyance Deeds (page No. 155 of the appeal) dated 09.03.2012 to support his arguments. He would further submit that the Mortgage Deed of the second floor, as alleged by the Respondent No. 1, was executed in favor of Respondent No. 1 Financial Institution by Respondent No. 2 the Realtor/ Developer on 31.03.2018; that, however the apartments were sold by the Respondent No. 2 Developer prior to the execution of this alleged Mortgage Deed. He would further submit that this agreement to sale were, subsequently, were converted into Conveyance Deed.
The Learned Counsel for the Appellant would further submit that the DRT erred in observing that the Appellant Society does not have any locus standi and the owners have not come forward for relief before that Tribunal and there is no Power of Attorney on record authorising the Appellant society to approach the Tribunal on behalf of the owners and occupants of the property in question. He would further submit that the Appellant is a registered society and the same was registered in year 2021 and on date 13.01.2026 a resolution was passed in this society authorizing the Appellant society to challenge, contest and defend the present matter before the appropriate Tribunal, Court, Quasi-Judicial and other forum and to execute and sign vakalatnama of advocate, sign, affirm, submit, affidavits, pleadings, application’s replies, written statements etc. and for that purpose authorized Mr. Kailashnath Dhaniram Yadav, Secretary of the society, to do all this acts.
He would further submit that Appellant is a registered society therefore the appellants who are numbering above 45, were not needed to approach the Tribunal individually as they were part of the registered housing society constituted to save the interest of the respective apartment owners.
He would further submit that the Learned DRT erred in not appreciating the fact that after alleged execution of the mortgage deed in favor of the Appellant No. 1, this property i.e. parking plot were not mentioned in the Memorandum of Deposit before the “Sub-Registrar of Assurance” which is mandatory under the law; that, in absence of the non-deposit of the title deeds and mortgage etc. before the “Sub-Registrar of Assurance” any action on the basis of this alleged mortgage is nullity.
Per Contra, the Learned Counsel for the Respondent No. 1 would submit that the impugned order is correct as per law and the Appellant society does not have any locus to move any application under SARFAESI Act before the Learned DRT.
He would further submit that if at all there was any cause of action to the apartment owners then they should have filed the S. A. individually and not through the Apartment Owners Society/Appellant.
He would further submit that in the mortgage it was specifically stated that second floor of the proposed building to be constructed would be office space and the Respondent No. 2 mortgaged the same with the Respondent No. 1. He would further submit that at the time of the execution of the mortgage deed, the proposed plan of Building was also given and same formed part of the mortgage in which the second floor, which was mortgaged, was shown to be the office space. He would further submit that notice of intimation to the “Sub-Registrar of Assurance” was filed by Respondent No. 2 in favor of Respondent No. 1. He would further submit that only one “Conveyance Deed” was placed before the Learned DRT and not of all the alleged apartments.
Considered and perused the records.
Now it has to be seen whether the Appellant society is entitled to any interim relief as prayed for in I.A. Dy. No. 448/2026 thereby staying the operation, implementation and execution of the possession notice dated 12.01.2026 including the proposed action of the taking physical possession. For this, this Appellate Tribunal has to see if the Appellant was able to demonstrate that the Appellant has a good prima facie case. It has further to show that balance of convenience lies in its favour and, if interim relief is not granted then, the Appellant would suffer irreparable loss.
It is an admitted fact that the Appellant is the registered society of the Apartment Owners of the building in which subject matter of property is situated and it has also come during the course of the arguments that as on today the second floor is not being used as an office but being used for the purpose of parking vehicles and a special ramp is also constructed for this purpose. That is to say, the second floor of the building, the subject matter of this dispute, is at present being used for parking of vehicle. The perusal of the Conveyance Deed referred by the Appellant clearly shows that in Conveyance Deed parking at second floor is clearly stated. Perusal of the appeal would further reflect that the Conveyance Deed referred was executed on 09.03.2012 i.e. prior to the execution of the Mortgage Deed by Respondent No. 2 /Developer in favour of the Respondent No. 1. In this circumstance, the flat owners have a right, claim and interest prior to the creation of interest, if any, in favour of Respondent No. 1 by Respondent No. 2. It is also pertinent to observe that a resolution was passed by the society thereby authorising its secretary to take steps and file the case or appeal to protect the rights and interests of member Apartment Owners. By dismissing the authority of the Appellant society at early stage shall deprive the Apartment Owners who have the right, claim and interest in the property in question prior to the creation of the interest, claim and right, if any, in favour of Respondent No. 1.
In the considered view of this Appellate Tribunal, the Appellant has successfully demonstrated a good prima facie case in its favour.
This Appellant Tribunal now has to examine that in whose favour the balance of convenience tilts and if irreparable loss would be caused to the members of the Appellant society if the interim relief is not granted. These two issues are based on the common facts and law. Therefore, both are being decided together.
It is an admitted fact that the property in question at present is being used as parking. A reference to the one of the Conveyance Deeds filed on record reflects that one space at this second floor podium is part of that Conveyance Deed of that particular apartment. Therefore, the balance of convenience is in the favour of the Appellant and if interim relief is not granted then, in that situation the members of society would certainly suffer irreparable loss.
I.A. Dy. No. 448/2026 is allowed thereby restraining the Respondent No. 1, their officers, assignees from the proceedings further to take the possession of Office Nos. 201, 202 and 203 on 2nd Floor, D wing, more specifically stated in para no. 6(a) of this I.A. and for proceedings further under the provisions of SARFAESI Act in respect of the same property.
List the case on 17.09.2026 for further proceedings.